Doctors’ body urges government to aim high with fixed-fee cap for clinical negligence cases

The Medical Protection Society (MPS) has called on the government to be more “bold” with its proposals to introduced fixed costs for clinical negligence cases by including cases worth up to £250,000 – 10 times the proposed limit.

The Department of Health’s consultation on the new regime for cases worth up to £25,000 – a figure considerably lower than had originally been floated – closes next week, and the MPS said that while it supports the proposals in principle, they do not go far enough.

The government envisages saving around £45m a year by 2020/21, but the MPS – which supports 300,000 doctors, dentists and other healthcare professionals – said it could achieve more at a time when the NHS budget is under huge financial pressure.

Emma Hallinan, the MPS’s director of claims, said: “We fully support the introduction of mandatory fixed recoverable costs for claims of clinical negligence.

“In lower-value claims, it is not unusual to see lawyers’ costs exceed the compensation awarded to claimants. As an example, in a recent case involving a delayed diagnosis which settled for £4,000, legal costs of £35,263 were sought. This is simply not right.

“We do, however, question the £25,000 threshold proposed by government. While we understand the argument for not capping legal costs for the most expensive and complex claims, we believe it is appropriate and viable to include claims up to £250,000.

“Disproportionate legal fees are still a significant issue for claims up to this value – setting the threshold at £25,000 would help, but the financial benefits to the NHS and the taxpayer would be greater if the threshold were set at a higher level.”

Ms Hallinan said the NHS paid out £1.5bn in clinical negligence costs in 2015/16, with legal costs accounting for 34% of that bill. The fixed costs scheme presented “an opportunity to create a more proportionate, fairer system while generating savings to the NHS which can be used to deliver front line care. It is an opportunity that should not be wasted”.

She concluded: “We urge government to be bold when making its decision on the threshold. Difficult decisions about spending in the NHS are made every day, and how we approach the spending of NHS funds on lawyer fees must be one of them.”

MPS also stressed that fixed fees would need to be one of a number of legal reforms to control the cost of claims, but told Litigation Futures that it was keeping its other proposals under wraps for the time being.

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